Citation Nr: 1339076 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 09-14 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for irritable bowel syndrome (IBS) with abdominal pain, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 3. Entitlement to service connection for a left hip disability, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 4. Entitlement to service connection for a low back disability, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 5. Entitlement to service connection for a neck disability, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 6. Entitlement to service connection for a bilateral foot disability, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 7. Entitlement to service connection for headaches, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 8. Entitlement to service connection for a bilateral elbow disability, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 9. Entitlement to service connection for bilateral carpal tunnel syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to January 1994. The Veteran also had subsequent service with the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Salt Lake City, Utah. In the November 2008 rating decision, the RO granted a claim of entitlement to service connection for PTSD, assigning a 30 percent rating, effective April 24, 2008, and denied the remaining claims on appeal. In an April 2010 rating decision, the RO granted a higher initial rating for the Veteran's PTSD, assigning a 50 percent rating, effective April 24, 2008. In July 2010, the Veteran testified before the undersigned at a Board hearing by videoconference. A transcript of the hearing is of record. During the hearing, the undersigned granted a 60-day abeyance period for submission of additional evidence in support of the claims. In May 2013, the Veteran's representative submitted medical evidence in favor of his claim of entitlement to service connection for IBS with abdominal pain. Because the Veteran disagreed with the initial rating assigned following the grant of service connection for PTSD, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO granted a higher rating of 50 percent during the pendency of the appeal, inasmuch as a higher rating is available for this disability, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). As the issues of service connection for IBS and for abdominal pain involve the same or overlapping symptoms, and the evidence reflects that the Veteran's abdominal pain is a symptom of his IBS, see December 2009 VA examination, the Board is addressing them together as an issue of service connection for IBS with abdominal pain. The issues of entitlement to an initial rating in excess of 50 percent for PTSD; entitlement to service connection for bilateral carpal tunnel syndrome; and entitlement to service connection for a left hip disability, for a low back disability, for a neck disability, for a bilateral foot disability, for headaches, and for a bilateral elbow disability, all to include as due to undiagnosed illness or other qualifying chronic disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran's DD Form 214 shows that he was awarded the Southwest Asia Service Medal and the Kuwait Liberation Medal. 2. The Veteran experiences chronic diarrhea and abdominal pain; by 2008 clinicians diagnosed him with IBS. CONCLUSIONS OF LAW 1. The Veteran had active military service in the Southwest Asia theater of Operations and is a Persian Gulf Veteran. 38 U.S.C.A. § 1117(f) (West 2002); 38 C.F.R. § 3.317(d), (e) (2013). 2. Service connection for IBS with abdominal pain is a medically unexplained chronic multisymptom illness due to the Veteran's service in the Persian Gulf. 38 U.S.C.A. §§ 1110, 1131, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A Persian Gulf Veteran is defined as a Veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f) (West 2002); 38 C.F.R. § 3.317(d) (2013). The record establishes that the Veteran was deployed to the Persian Gulf for Operation Desert Storm in 1990 to 1991. The Veteran's DD Form 214 shows that he was awarded the Southwest Asia Service Medal and the Kuwait Liberation Medal among other awards and decorations. Thus, the Board finds that the Veteran had active military service in the Southwest Asia theater of Operations and is a Persian Gulf Veteran. See 38 C.F.R. § 3.317(e) (2013). As a Persian Gulf Veteran, compensation may be established for objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. 38 U.S.C.A. § 1117(a) (West 2002). A "qualifying chronic disability" includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective December 18, 2006, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 76 Fed. Reg. 81,834 (Dec. 29, 2011). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a), (b) (2013). For purposes of considering service-connection of gastrointestinal disorders as a qualifying chronic disability in Persian Gulf War veterans, functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, IBS, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317(a)(2)(i)(B)(3), Note (2013). Service connection may be warranted if the Veteran's IBS became manifest to a degree of 10 percent or more before December 31, 2016, as provided in 38 C.F.R. § 3.317 regarding an association between Gulf War service and functional gastrointestinal disorders. At his December 2009 VA examination, the Veteran described having on average three stools per day, although sometimes up to seven could occur. The Veteran described abdominal pain three days per week. The Board finds that the Veteran's IBS has become manifest to a degree of 10 percent within the required presumptive period. A 10 percent rating is assigned for IBS under 38 C.F.R. § 4.114, Diagnostic Code 7319, covering irritable colon syndrome. A 10 percent rating is assigned for moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress. Daily episodes of IBS, to include multiple, daily episodes of IBS, meets the criteria for a moderate (10 percent) rating. Thus, the Veteran's diagnosed IBS is a medically unexplained chronic multisymptom illness that has become manifest to a degree of 10 percent prior to December 31, 2016, and the claim is granted. ORDER Entitlement to service connection for IBS with abdominal pain is granted. REMAND The Veteran has raised claims of service connection for a left hip disability, a low back disability, a neck disability, a bilateral foot disability, headaches, and a bilateral elbow disability, to include as due to undiagnosed illness, based upon the Veteran's status as a Persian Gulf Veteran. He also requests entitlement to service connection for bilateral carpal tunnel syndrome and an increased initial rating for PTSD. The Board's review of the claims file reveals that further RO action on these claims on appeal is warranted. I. VA Treatment Records The most recent VA treatment records in conjunction with the claims on appeal are dated in June 2009. While on remand, updated VA treatment records should be associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). II. VA Examinations A. Left Hip, Neck, Bilateral Foot, and Bilateral Elbow The Veteran claims entitlement to service connection for left hip, neck, bilateral food, and bilateral elbow disabilities, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. As previously noted, the Veteran qualifies as a Persian Gulf Veteran. See 38 U.S.C.A. § 1117(f) (West 2002); 38 C.F.R. § 3.317(d) (2013). Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. A "qualifying chronic disability" includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include headache and joint pain. 38 C.F.R. § 3.317(b) (2013). The record establishes that the Veteran was deployed to the Persian Gulf for Operation Desert Storm in 1990 to 1991. The Veteran has since complained of arthralgia in the left hip, neck, bilateral foot, and bilateral elbow. VA has not yet afforded the Veteran an examination with respect to these claims to determine if these complaints can or cannot each be attributed to a known clinical diagnosis. VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). The Board finds that a VA examination assessing whether the Veteran has current left hip, neck, bilateral foot, and bilateral elbow disabilities is warranted in this case, in order to proceed with his theory of entitlement regarding undiagnosed illness. The evidence of record reflects that the Veteran has been diagnosed with arthralgia, however, there is no diagnosis of any left hip, neck, bilateral foot, or bilateral elbow disorder of record. See, e.g., active problem list in September 2008 VA outpatient treatment record (noting arthralgia). As such, because there is competent evidence that the Veteran has complained of pain related to his left hip, neck, bilateral foot, and bilateral elbow, the Board finds that the first McLendon element has been satisfied as to these claims. Turning to the second McLendon element, the Veteran qualifies as a Persian Gulf Veteran. Evidence of record also indicates that he was exposed to environmental hazards during his deployment. See December 1989 administrative record (noting that the Veteran participated in the liberation of Kuwait and lived in the burning oil fields for an extended period of time). Accordingly, because the evidence of record indicates that the Veteran was exposed to environmental hazards in service, the second McLendon element has been satisfied. The Board notes that the third McLendon element is satisfied by the provisions of 38 U.S.C. § 1117(a)(1), which establish a presumption for those Persian Gulf veterans who exhibit objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Significantly, however, because there is insufficient medical evidence of record addressing whether the Veteran has current left hip, neck, bilateral foot, and bilateral elbow disabilities that may be related to his deployment to the Southwest Asia area of operations, VA examinations are necessary for the Board to make a decision on these claims. See McLendon, 20 Vet. App. at 81; see also 38 U.S.C.A. §§ 1117, 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). B. Headaches In December 2009, the Veteran was afforded a VA examination for his headaches. After an examination and review of the claims file, the examiner diagnosed the Veteran with muscle contraction headaches. She found that the Veteran's headaches were less likely than not related to exposure to smoke and chemicals in the Gulf War. As rationale, the examiner noted that there was no record of any complaints of headaches in the Veteran's service treatment records or VA treatment records. She acknowledged that "[t]hat certainly does not mean that the [V]eteran does not have headaches" but she had "nothing to go by to relate [the headaches] back to service or service in the Gulf War." This rationale is problematic because the examiner based her opinion solely on a lack of medical documentation of record, without acknowledging the Veteran's lay statements of having progressively worsening headaches since 1993. The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that a VA examination is inadequate where it ignores the claimant's statement of in-service incurrence. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). The Veteran's headaches also may be service connected if they represent a qualifying chronic disability that has become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations. Although the Veteran was diagnosed with "muscle contraction headaches" there was no discussion by the examiner as to whether this represented a diagnosed disability or a manifestation of undiagnosed illness or medically unexplained chronic multi-symptom illness. As such, this opinion is inadequate, and the Veteran should be afforded an opportunity for an examiner to provide a new opinion. C. Back The evidence reflects that the Veteran is currently diagnosed with a back disability. As such, the theory of entitlement for service connection based on undiagnosed illness is not applicable to this claim. The Veteran, however, can still establish service connection for that diagnosed disorder on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the Veteran has claimed that he injured his back in service while doing heavy lifting. In December 2009, the Veteran was afforded a VA examination for his low back. After an examination and review of the claims file, the examiner diagnosed the Veteran with low back strain. She found that the Veteran's low back stain was less likely than not related to in-service lifting injuries. As rationale, the examiner noted that there were several complaints of back pain in service, but since that time, she did "not have any records showing an ongoing chronic problem with his back. . . . [t]here is really not much to go on in terms of medical evidence for an ongoing chronic back problem." The opinion provided in the VA examination discounted the Veteran's lay statements of having progressively worsening back pain since service. The Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). A VA examination is inadequate where it ignores the claimant's statement of in-service incurrence. Dalton, 21 Vet. App. at 39. As such, this rationale is problematic, considering the Veteran has competently asserted that he suffered an in-service lifting injury (which is documented in his service treatment records, see October 1993 Report of Medical Examination), as well as from progressively worsening back pain since service. As the VA examiner did not discuss this relevant lay history, the Board finds that this VA examination is inadequate for entering a final decision. West v. Brown, 7 Vet. App. 70, 77-78 (1994). Therefore, the Veteran should be afforded an opportunity for an examiner to provide a new opinion, based on all relevant evidence, both medical and lay. D. Carpal Tunnel Syndrome The Board finds that a VA examination assessing whether the Veteran's carpal tunnel syndrome is related to his work as a mechanic in service is warranted in this case. The evidence of record reflects that the Veteran has been diagnosed with bilateral carpal tunnel syndrome and underwent surgery of his right hand in September 2008. See July 2008 and September 2008 VA treatment records. As such, because there is competent evidence that the Veteran has a diagnosis of bilateral carpal tunnel syndrome, the Board finds that the first McLendon element has been satisfied as to this claim. Turning to the second McLendon element, the Veteran served as a mechanic in service. See DD Form 214 indicating the Veteran served as an assault amphibious repairmen, tracked vehicle repairman, and tank repairman. Accordingly, because the evidence of record indicates that the Veteran worked in a military occupational specialty that may cause carpal tunnel syndrome, the second McLendon element has been satisfied. The Board notes that the third McLendon element is satisfied by the Veteran's statement that he has suffered from progressive numbness in his hands for about 10 to 12 years. See June 2008 VA treatment record. The Veteran is competent to testify about observable symptoms or injury residuals, such as numbness in his hands. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran's numbness reportedly began close to separation from service, the McLendon element is satisfied. Significantly, however, because there is insufficient medical evidence of record addressing whether the Veteran's bilateral carpal tunnel syndrome that may be related to his service, VA examinations and medical opinions addressing the etiology of these disabilities is necessary for the Board to make a decision on this claim. See McLendon, 20 Vet. App. at 81; see also 38 U.S.C.A. §§ 1117, 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain updated VA treatment records regarding all the Veteran's claims on appeal. Any records obtained must be associated with the Veteran's claims folder. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After all available records have been associated with the claims file or Virtual VA e-folder, the Veteran should be afforded a VA examination to determine the etiology of any current headache, left hip, neck, bilateral foot, and bilateral elbow conditions. All indicated tests and studies, to include X-rays, are to be performed. The claims file, to include the relevant electronic records, should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should note all reported symptoms related to the Veteran's claimed headache, left hip, neck, bilateral foot, and bilateral elbow conditions. The examiner should specifically state whether any of the Veteran's complaints are attributable to a known diagnostic entity. If there are known diagnostic entities to which the Veteran's complaints are attributable, the examiner should offer an opinion, with respect to each disability, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current disability is causally related to his period of active service, to include a fall from a tank that occurred during the Veteran's deployment. If any symptoms related to the Veteran's claimed headache, left hip, neck, bilateral foot, and bilateral elbow conditions cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such signs or symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale must be provided for any opinion rendered, and the examiner should discuss any relevant evidence of record. 3. The Veteran should also be afforded a VA examination to determine the etiology of his carpal tunnel syndrome. All indicated tests and studies are to be performed. The claims file, to include the relevant electronic records, should be made available to and be reviewed by the examiner in conjunction with the examination. After a review of the claims file and an examination of the Veteran, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's carpal tunnel syndrome is causally related to the Veteran's service, to include his work as a mechanic in service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale must be provided for the opinion rendered, and the examiner should discuss any relevant evidence of record. 4. The Veteran should also be afforded a VA evaluation to determine the etiology of his low back strain. The claims file, to include the relevant electronic records, should be made available to and be reviewed by the examiner in conjunction with the evaluation. After an examination of the Veteran (as needed) and a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back strain (or any other diagnosed back disorder) is causally related to the Veteran's service, to include a documented in-service lifting accident in October 1993. In so opining, please also consider the Veteran's statements that he has suffered from progressively worsening back pain since service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale must be provided for the opinion rendered, and the examiner should discuss any relevant evidence of record. 5. The Veteran is hereby notified that it is his responsibility to report for a VA examination if ordered, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Thereafter, review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, have been conducted and completed in full. Review the examination reports to ensure that they are in complete compliance with the directives of this REMAND (to include ensuring that the questions have been adequately answered). Any deficiencies should be corrected. 7. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal, considering all evidence of record, to include new evidence obtained since the last adjudication. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford him a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ B.C. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs